*1 SUPREME OF COURT MISSOURI,_ Lynch. McKenna v. judgment the is, result of the circuit the court on petition, of second count the is affirmed, is but reversed quiet as to the the count to first count, title, and remanded judgment with the directions to circuit to enter court plaintiffs declaring said count, first are the owners simple property petition, in fee described the subject quarantine rights the to dower and of said for George mer widow of Manear, deceased, are owned by the all in defendant, accordance with the ex views pressed opinion. Ragland, in this G., concurs; Brown, sitting. C., PEE foregoing opinion by CURIAM:—The Small, adopted opinion
isG., as of the court. All of the judges concur. McKENNA et
FLORENCE Next al., Friend, ANNIE GREEN, Their Guardian, v. A. JOSEPH LYNCH, Appellant. One, July 11,
Division 1921. Presumption Cpntributory Negligence. 1. INSTRUCTION: of Fact: improper, ordinarily, jury It to instruct a with reference presumptions questions of fact relate for submitted hearing their determination 'after a evidence. In suit damages negligent killing pedestrian by of a automo- an night time, telling “you bile in the an instruction contributory proving are further the burden of instructed that part upon defendant; on the deceased is presumption is the exercise of safety death, presump- own this care for his at the time of his greater preponderance until overthrown tion continues evidence,” erroneous, any weight if there substantial contributory negligence part de- evidence whatever ceased, jury. question take the sufficient to Rights to AND PEDESTRIAN: Relative Street: AUTOMOBILE 2. pedestrian, equally operator A to Each Duties Other. APRIL TERM, Yol. automobile, upon the travelc and use an has public sidewalk, aas street it is instead along pedestrian, walking duty of law the while matter of *2 constantly highway, repeatedly part about of a to turn
traveled n possible approach of vehicles the rear. On from observe operator contrary, pedestrian may a that the such assume lookout; ordinary keeping a in will exercise care the automobile ordinary discovered such he will be conditions that under approaches, operator, operator; as will slow- and that signal horn; give he is also but an audible his down and with automobiles, required exercise for on the lookout according protection, to the circum- care for own he finds himself. in which the situation stances of Negligence: Contributory None as Matter of Law. INSTRUCTION: 3. was deceased law that at the time matter of as a It cannot be said portion a street a traveled an automobile struck customarily by pedestrians of ordi- in exercise was used night, safety, dark where the was a nary time own care straight without walked ahead was evidence there advancing left, rays turning his face away. yards headlight past it a hundred him while was shot George City Appeal Circuit Court. —No». from St. Louis Judge. Shields, N. and remanded.
Reversed appellant. Bryan, S Gave Williams plaintiff’s giving (1) court instruc- The erred reason that for the it 2, numbered tells tion presumption deceased ex- there was ercising ordinary at the while same time care, submit- ting question of his an issue. care as The evidence to deceased’s actions before the reference presumption, no and it jury, there was error Schepers Ry. Moberly 98 Co., 183; v. Mo. instruct. so Meyers Ry. Depot City 126 665; Mo. v. Co., v. Union v. 480; 108 Mo. Rodan St. Louis Transit Co., Kansas, Safety Hutchinson v. Grate 392; Co., Mo. 207 Mo. 207 Baking 89; 223 Brannock Co., v. v. 392; Staffs S. W. Mo.—2 289 MISSOURI,
18
COURT OP
SUPREME
App. 320;
Mo.
Lee v.
Railroad,
Publishers,
147
55 Mo.
App.
Rey-
v. Railroad,
390;
550;
Mockowik
196 Mo.
Casualty
Higgins
Mo.
Co.,
113;
v.
nolds v.
Railroad,
Taylor
App.
Co.,
300;
Tel.
181 Mo.
Mo.
giving plaintiff’s
(2)
court erred
following’
(a)
2 for the
reasons:
numbered
When read
particular
light of
facts here,
in the
jury,
tells the
a matter
it was
law,
to walk in
the deceased
the traveled
for
highway
night,
of the block
on a dark
middle
pedestrian’s
place
crossing,
other than the
usual
existing in
under the conditions
this
while
case,
aas
question
certainly
of fact
this
as to
matter
might
differ,
reasonable minds
therefore for the
jury.
v. W. Bell
Co.,
Jackson
S.
Tel.
S.
John G. Robertson Phil II. Sheridan for re- spondent.
(1) telling Plaintiff’s numbered 2, presumed the deceased McKenna was ordinary in safety, the exercise of care his own proper in this case, as there was no at evidence contributory negligence all of Mc- said Buesching Light Kenna. v. Gas 73 Co., Mo. 219; Riska Depot v. Union Railroad 180 Co., Mo. 168; Eckhard Wiegman v. Transit Co., 190 613; Mo. v. Railroad, 223 718; Mo. McGahan v. Transit Co., 201 5Ó7; Mo. Menteer v. Fruit Co., 240 Mo. v. 186; Goff Co., Transit 199 Mo. App. 706; Weller v. Railroad, 164 Mo. Stotler 205; v. Railroad, 200 Mo. Mockowik 146; v. Railroad, 196 Mo. (3) App. Richter v. 550; 145 Mo. Railroad, 1. Planitiff’s 19 1921. TEEM, APBIL -Yol. 4 3 state law. numbered correctly instructions equal user of an automobile pedestrian A highways them, and each is to use rights upon public on mind of the other. The rights beggar bearing the use the streets has same crutches each is bound to automobile; of an use driver prevention care for his own safety 1300; on sec. Thompson Negligence, to others. injury Imp. Ostermeier v. 271 Mo. Hudson, -495; Frankel v. Mo. 216 Eailroad, 145; Kinlen v. 135; Mo. Co., 255 App. Hodges 195 Cham- 684; v. Mo. v. Ford, Carradine 563; Crawford, Mo. Meenach 187 171 v. S. bers, App. 131; Gray 21 Cal. App. Blackwell v. 879; Benick, W. Vehicles, 441; 208 Mass. Babbitt Motor Batchelor, v. Mo. E. Eailroad, 434; v. Brewing App. 1257; sec. Mo. v. Missouri Auto Co., sec. Clark 1919, 7593; S. Bonger App. 165 Mo. 623; Ziegenheim, 328; App. p. Auto Berry’s Law, a suit the guardian C. This is
EAGLAND, McKenna, of Michael deceased, children minor re- damages said minor the defendant children cover Michael February, 1918, the death the said an from struck automobile driven resulting time, westwardly along Avenue Laclede between Louis, of St. Vandeventer Sarah. City time of his at the death was forty-eight deceased and was moulder earning old, approximately years *4 He him left four minor year. surviving chil- per $1,000 three fourteen, boys, and aged thirteen, dren, girl respectively. nine, and twelve, of petition
The contains plaintiffs charges negli- to cover broad the instructions given sufficiently gence the jury. answer raised issue of contributory negli- the gence. the was at time tending
There evidence show dispute it was dark —there some the accident of OF SUPREME COURT MISSOURI, lamp of street to tlie tlie nearness exact scene point of accident; the that the the accident the was point regu- at a block, middle and other than a .crossing; pedestrian’s driving lar that defendant was speed provided at a excess of rate or- west pleaded proven ordinance dinance, which was plaintiff; accompanied by the defendant was J. this witness one E. Bowen, they that as west from Vandeventer both testified drove approached the accident, Avenue scene headlights burning they were both look- were and that straight ing ahead all the time. condi-
The defendant that on account of the testified only directly wéather he could see tion ahead machine; and a little each side of the could him he of him within the radius of his see street ahead headlights, within that he and that radius could see approximately driving feet; that he came at west, looking about twelve miles an that he was hour; ahead all that when he saw time; first McKenna latter directly feet was about ten or twelve ahead machine in front of left wheel; that he saw him sud- denly and did not know from he where came or what doing, though appeared walking was the same going; direction in which he, defendant, that he had McKenna, straight looking been ahead before saw power applied and when he saw him he off his threw his brakes and threw out clutch and tried to turn they stop, ear; that having came to a sudden his car angle forty-five degrees skidded to an of about curb, and headed that the northwest; front end of .the machine pass skidded around; machine did stopped over him; after the machine was McKenna lying about fifteen feet from the left rear wheel; that under the conditions as existed the time stop the accident he could his Ford in about fifteen feet; particular and that on this occasion he traveled about stop feet, fifteen after he although tried to his car, *5 TERM, APRIL Yol. Lynch.
McKenna car moved that admitted lie cross-examination, saw forty-five first after approximately of distance McKenna. corroborated testimony defendant The particulars. No other essential in all Bowen prior accident. the deceased saw witness warning and other or horn no sounded Defendant tending the defendant’s to show was evidence there circumstances facts the under could, automobile stopped after the defen- have been evidence, in the shown driving had been deceased, if the defendant the dant saw or at speed provided ordinance in the the rate at speed. rate lesser tending to was evidence hand, there other
theOn not, defendant could automobile the show evidence, shown the circumstances under stopped even deceased, saw the defendant after been going though been at time, at the had, speed or a lesser rate than that even at ordiance rate ordiance. fixed plaintiffs. judgment Def- were for
The verdict appeals. endant predicated assignments all on of error are refusing giving instructions.
action of the court Among following given others, plaintiff’s instance: “You further instructed are burden proving contributory negligence part of the de- upon pre- ceased Michael McKenna the defendant, sumption deceased was in the exercise of safety care for his own at the time of his death, presumption and this continues until overthrown preponderance greater weight of the evidence.” any
If there was substantial evidence whatever of contributory on of deceased, that is, evidence take question, the case to the on that give was error to impropriety, this instruction. The ordinarily, juries instructing respect presump COURT OP MISSOURI, SUPREME *6 questions relate submitted to
tions fact hearing has so evidence, been after determination their upon frequently of this in numerous decisions elaborated light upon thrown additional would be that no court subject by [State rel. Ellison, ex v. a further discussion. Transit Mo. Morton Co., 392; 207 239; 268 Mo. Rodan v. 608; Barret, 135 Mo. Ham v. Mo. Heidorn, 388; v. by Myers City, 480.] 108 Mo. As was said v. Kansas supra (l. 257) rel. c. : Ellison, in State v. J., ex Blair, say jury, an in the of a re “To case presumption, in buttable and when evidence has been presumes’ upon question, ‘the troduced law so presumption and so ‘must such be overcome’ by evidence, or ‘overthrown’ some sometimes useless, always illogical.” prejudical times To so instruct jury under the circumstances of if the instant case, prejudicial. supra.] was [Morton error at all, Heidorn, v. which, question is: was then evidence on there go plea defendant could of contribu- tory negligence pedestrain, ? It must conceded that a equally operator right with the of an automobile, has the upon highway and use the traveled in- stead of the sidewalk; it as a matter of law duty pedestrian walking along the part edly of a while the traveled highway constantly
of a repeat- turn about approach possible to observe the vehicles from the (Blackwell App. rear 131); 21 Cal. Renwick, that on contrary may operator he assume of an ordinary automobile keeping will exercise care in a look- ordinary out; that under conditions he will be discovered operator; such and that ap- the latter will as he proaches give signal slow down and an audible with [Sec. horn. R. 7593, In 1919.] S. view these corre- rights pedestrian lative and duties of a and the driver of an it automobile, must be said, as a conclusion of law on the facts disclosed the record in this case, that deceased at the time he was struck was in the exercise safety? care for his own APEIL TEEM, Vol. portion along walking traveled was Deceased pedestrains; customarily place used at a
of a street he was during interval the brief dark; it straight prior walked just collision, he observed left; turning or to the his face to the without ahead rear precaution to look taken earlier had long approaching it car before seen the have could headlights rays advancing must him; .reached away; yet feet hundred past him while have shot approach of cars must at all for listened and had he stepped avoided aside and to have it in time heard that he was inference It is struck. reasonable *7 approach or else he' automobile, of an of the conscious happening senses that his took so indifferent to such may be further inferred that fact. And it of the no note thought approach gave vehicle, of such a no coming, get steps took no of its if he was conscious or, way, that the driver would he assumed of its because out by proper degree doing of care and so would exercise the striking day-light him. Had it been broad see and avoid operator of the car clear and vision of the un fully obstructed, deceased would no doubt have been assumption. justified acting upon such But under the entirely possible as existed, it conditions exercising ordinary if driver, care, even would not seen him until it was too late have avoided strik pedestrian ing him. While has the to assume drivers of automobiles will on the lookout for him, required also to be on for the lookout them, and in all cases is bound to exercise for care his own protection, according to the circumstances of the situa tion which he himself. [O finds ’Dowd v. Newnham, App. 220.] Ga. Whether deceased exercised such care, or guilty whether he was which contributed bring injury own about his death, was, clearly facts shown evidence, to deter giving mine. It follows that of the instruction in question was error. MISSOURI, OF
(cid:127)24 SUPREME COURT v. Zuck. Nook given plaintiffs criticised, Other instructions- are essentially may defects, technical, but their are on another trial. avoided judgment
For the error noted will be reversed cause and the remanded. Brown and Small, GC., concur. foregoing opinion PER CURIAM:—The Rag- adopted opinion 0., judges the court. All land, concur. Appellant, NOOK, GUST v. J. B. ZUCK et al. One, July 11, Division 1. WILL: Attestation: Becitals: Witness to Mark. The re- statute “every quiring writing, signed by will he in shall the testa- tor, person, by direction, presence; some competent subscribing shall be attested two or more witnesses presence their names to will in the of the testator” does not things appear require all these statement shall will, anything or that word face “attest” or what- other ever shall be written thereon than name of the testator signed of the witnesses. If will and the names the maker mark, by making signed *8 persons other competent and three his mark,” testify it as “witness to and made mark was it, they signed before that he declared it and his last will they signed request presence, it at his witnesses in sufficiently attested. English. -: German Testator: Bead to Him in testator could, difficulty, speak English a few words and make his making purchases, wants known in but could write or read English language, enough and said he talk it well could English; dictate his will the scrivener could not understand German, hut the testator two told witnesses could understand who English just money both German and what different amounts of give to each of his wished children what land he wished daughter, devise certain r.o and those witnesses translated repeated requests English, scrivener who wrote English, completed after them down in the will was it was